IN THE CASE OF:	  

		BOARD DATE:  31 July 2012

		DOCKET NUMBER:  AR20110022332 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he was promised an honorable discharge and he suffers from a mental disability.

3.  The applicant provides a letter from a Congressional Representative, dated 
27 April 1976 and a letter of support from his father, dated 23 May 1976.
 
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a 
substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 29 October 1974, he successfully completed the training requirements, and he was awarded military occupational specialty 31M (Multichannel Communications Equipment Operator). 

3.  On 2 July 1975, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful possession of marijuana.

4.  On 23 February 1976, the applicant was barred from reenlistment for receiving an Article 15 and unsatisfactory conduct and efficiency.  He was counseled on the below dates for tardiness, lack of cooperation, and insubordination:

* 12 and 24 June 1975
* 19, 27, 29, and 30 August 1975
* 3, 4, and 9 September 1975

5.  On 10 April 1976, the applicant was convicted by a special court-martial of wrongfully communicating a threat, failure to repair, disobeying a lawful order, committing an assault, and wrongfully using provoking words.  His sentence consisted of reduction to the lowest enlisted grade, a forfeiture of half his pay per month for 4 months, and confinement at hard labor for 4 months.  

6.  The applicant provided a letter of support from his father explaining that he (applicant) had a life history of sinusitis and asthma.  Additionally, he provided a letter from his Congressional Representative that informed him on how to submit an application for hardship reassignment and/or a medical discharge.  

7.  The applicant’s medical records are not available and there is no evidence in his service personnel records that shows he requested a hardship reassignment or a medical discharge.  There is also no evidence that shows he was promised an honorable discharge.

8.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 7 July 1976 for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations).  He was issued an undesirable discharge after completing 1 year, 4 months, and 18 days of creditable active service with 111 days of lost time due to being in confinement.


9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(1), then in effect, contained the policy and outlined the procedures for separating individuals for unfitness when they were involved in frequent incidents of a discreditable nature with civil or military authorities and it was established that further efforts at rehabilitation were unlikely to succeed or they are not amenable to rehabilitation measures.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.  

2.  He states that he was promised an honorable discharge.  However, there is no evidence in his military service records and he has not provided evidence that he was promised an honorable discharge.

3.  The applicant's military service records do not contain evidence that he had a mental condition while serving in the military or that he had a mental condition that caused his misconduct. 

4.  The applicant's separation processing documents are not available.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations without procedural errors that would have jeopardized his rights.

5.  The available evidence shows he received an Article 15, a special court-martial conviction, and he was confined by military authorities.  Further, his record shows he completed 1 year, 4 months, and 18 days of creditable active service before he was separated with 111 days of lost time due to being in confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable or general discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X ___  ___X____  ___X  ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20110022332





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ABCMR Record of Proceedings (cont)                                         AR20110022332



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